Estate of Buyck, 2015 YKSC 23 June 8

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Estate of Buyck, 2015 YKSC 23 June 8 SUPREME COURT OF YUKON Citation: Estate of Buyck, 2015 YKSC 23 Date: 20150608 S.C. No. 14-P0034 Registry: Whitehorse IN THE MATTER OF THE ESTATE OF ALICE MAY BUYCK, DECEASED Before: Mr. Justice R.S. Veale Appearances: Breagh D. Dabbs Counsel for the Estate of Alice May Buyck Claire E. Anderson Counsel for the First Nation of Na-Cho Nyak Dun REASONS FOR JUDGMENT INTRODUCTION [1] The Estate of Alice May Buyck applies for a declaration that the First Nation of Na-Cho Nyak Dun (“Na-Cho Nyak Dun”) does not have a valid claim to Lots 11, 12, 13 and 14, Mayo, Yukon Territory, (the “Lots”), which are registered in the name of Alice Buyck. [2] Na-Cho Nyak Dun claims that the Lots should be transferred to the First Nation pursuant to a verbal agreement with Wilmont Wesley Buyck (“Wes Buyck”) and Alice Buyck whereby Na-Cho Nyak Dun agreed to construct a house on the Lots and grant a life estate to the Buycks in the Lots and the right to occupy the house in return for a transfer of the title to the Lots to Na-Cho Nyak Dun. Page: 2 FACTS [3] Alice Buyck was a citizen of Na-Cho Nyak Dun. She lived in a common-law relationship with Wes Buyck who was not a citizen of Na-Cho Nyak Dun. [4] In 1964, Wes Buyck purchased the Lots and buildings. The Certificate of Title records Wesley Buyck as the registered owner. [5] The former Mining Recorders office was located on the Lots but it was torn down leaving only a detached garage, which is still on the Lots. [6] Wes Buyck worked for the Government of Yukon in Mayo until 1974, when he was transferred to Stewart Crossing, a nearby community. Alice and Wes Buyck lived in government housing. They lived in Stewart Crossing until Wes retired on January 1, 1993. [7] Rose Lemieux is the daughter of Wes and Alice Buyck. She states that just prior to his retirement, Wes Buyck felt that the only way he could get a house for Alice was by transferring the Lots to Na-Cho Nyak Dun in exchange for a house. Rose Lemieux was not personally present for any of the discussions between Wes Buyck and Na-Cho Nyak Dun. [8] On August 6, 1992, Wes Buyck signed a transfer of the Lots to the First Nation of Na-Cho Nyak Dun in consideration of $1.00. Stewart Moses witnessed the signature of Wes Buyck, but the Affidavit of Attestation was unsworn. The affidavit of value was unsworn. The transfer was never registered at the Land Titles Office. [9] Wes Buyck passed away on January 21, 1993, just three weeks after his retirement. Page: 3 [10] By a Will dated December 5, 1986, Wes Buyck appointed his daughter, Rose Lemieux, to be his executor and trustee. The Will transferred one-half of his estate to Alice Buyck and the balance to his children. [11] Rose Lemieux telephoned Deputy Chief Billy Germaine on February 9, 1993, to inquire about the details of the arrangement between Na-Cho Nyak Dun and Wes Buyck. Billy Germaine returned the transfer of the Lots signed by Wes Buyck on August 6, 1992. Rose Lemieux states that Billy Germaine provided her with the Transfer signed by Wes Buyck and told her that she could keep it and Na-Cho Nyak Dun did not need it. [12] Billy Germaine states that it was his understanding that Rose Lemieux was to get the paperwork done to transfer Wes Buyck’s Lots to Na-Cho Nyak Dun but she never did. It was never his understanding that the deal to transfer the land was cancelled prior to the construction of the house. [13] On March 9, 1993, Rose Lemieux signed a Caveat against the Lots stating: Rose Lemieux, Executrix of the Estate of Wesley Buyck, Deceased, of the City of Whitehorse, in the Yukon Territory, claiming an interest pursuant to an Agreement made on or about August 2, 1992, between Wesley Buyck and Alice Buyck and the First Nation of Nacho Nyak Dun (“Nacho Nyak Dun”) whereby Nacho Nyak Dun agreed to construct a house on the lands and premises described herein (the “lands”) and grant Wesley Buyck and Alice Buyck a life estate in the lands and premises and the right to occupy the house in return for a transfer of the title to the lands to Nacho Nyak Dun, in the lands and premises more particularly described as follows: … [14] In the Affidavit of Caveator attached to the Caveat, Rose Lemieux swore the following: That the allegations contained in the annexed Caveat are true in substance and in fact as I verily believe. Page: 4 [15] The Caveat was registered against the Lots in the Land Titles Office on March 12, 1993. [16] The Supreme Court of Yukon appointed Rose Lemieux as Executor of Wes Buyck’s estate on March 16, 1993. [17] Billy Germain, Deputy Chief of Na-Cho Nyak Dun remembers when Na-Cho Nyak Dun built a house for Alice Buyck and Wes Buyck to live in, in exchange for giving up their land and using the house for the duration of their lives. [18] Roberta Hager has worked at Na-Cho Nyak Dun since 1985. She recalls that Alice or Wes requested that Na-Cho Nyak Dun build a house for Alice Buyck to live in and that the land would eventually be transferred over to Na-Cho Nyak Dun in exchange for the house being built. [19] Rose Lemieux stated that she told Na-Cho Nyak Dun prior to construction of the house for Alice Buyck that Alice was not in agreement with transferring all the Lots to Na-Cho Nyak Dun but only the lot on which the house was to be located. [20] Rose Lemieux stated that Na-Cho Nyak Dun built a house for Alice Buyck in the spring and summer of 1993 on the Lots. A Na-Cho Nyak Dun document entitled “Alice Buyck, Expense to Date, April 30, 1993”, listed a total of $49,057.28 in labour and materials. Additionally, Stan Lubaszko entered into a contract for $11,000 with Na-Cho Nyak Dun to provide the electrical work on the house. [21] On August 5, 1993, Rose Lemieux transferred the Lots and house to Rose Lemieux, Executor of Wes Buyck’s estate. [22] On January 3, 1995, Billy Germaine wrote to Rose Lemieux to inquire whether she, as Executor of the Estate of Wes Buyck, would transfer the house and Lots to Na- Page: 5 Cho Nyak Dun so that the Lots would be Settlement Lands of Na-Cho Nyak Dun under the Final Agreement between Na-Cho Nyak Dun, Canada and Yukon signed May 29, 1993. The transfer had to be completed before February 14, 1995, the Effective date of the Final Agreement. The Lots were included in the Na-Cho Nyak Dun Final Agreement as part of the First Nation’s Settlement Land provided that: - no later than the Effective Date of this Agreement, the owner registered in the Land Titles Office shall transfer all right, title and interest in the land to the First Nation of Nacho Nyak Dun, failing which, the land shall not become Settlement Land, [23] On January 31, 1995, the house and Lots were transferred into the name of Alice Buyck without the encumbrance of the Caveat. There is no evidence as to whether the Caveat lapsed or was withdrawn. [24] Rose Lemieux advised the lawyer for Na-Cho Nyak Dun on February 10, 1995, by telephone that Alice was not in agreement with transferring all the Lots to Na-Cho Nyak Dun, but was willing to transfer the lot on which the house was built. By letter dated February 10, 1995, the lawyer for Na-Cho Nyak Dun confirmed the intention as follows: Further to our telephone conversations today, I confirm that it was your intention to transfer to the NND [Na-Cho Nyak Dun] only the lot on which the house is situated. In order to do this, you would need a survey of the Property because it is not certain on which lot or lots the house sits. There is likely not enough time to get a surveyor to Mayo before the Effective Date of February 14, 1995. Also, you would prefer to negotiate with Council concerning the cost of surveying. In view of this situation, it appears that no transfer of the Property will take place prior to Effective Date. You have, however, expressed an interest in having the “house lot” transferred to NND in fee simple after the Effective Date. (my emphasis) Page: 6 [25] Counsel for Rose Lemieux responded by letter, dated March 16, 1995 to Na-Cho Nyak Dun: Please be advised that I represent Rose Lemieux, Executrix of the Estate of the late Wilmont Wesley Buyck and Mrs. Alice Buyck. As you are aware, Mrs. Alice Buyck is the registered owner of the above-noted Properties. Na-Cho Nyak Dun First Nation (the “First Nation”) constructed a home for Mrs. Buyck on one of the above-noted Properties. She presently resides in this home. Mrs. Buyck wishes to clarify her legal position with respect to the Properties. In order for this to take place, a legal survey of the Properties must be conducted in order to determine the exact sitting of the Lots and in particular to determine upon which Lot the house in which Mrs. Buyck resides is located. Once this legal survey has been completed, Mrs.
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